New Jersey-2024-A3912-Introduced

An Act concerning identity theft by means of artificial intelligence or deepfake technology, and amending N.J.S.2C:21-17 and P.L.2003, c.184.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S.2C:21-17 is amended to read as follows:

2C:21-17. a. A person is guilty of a crime if the person engages in one or more of the following actions by any means including, but not limited to, the use of electronic communications, computer software, or an Internet website:

(1) Impersonates or falsely depicts another or assumes a false identity and does an act in such assumed character or false identity or using such false depiction for the purpose of obtaining a benefit for himself or another or to injure or defraud another;

(2) Pretends to be a representative of some person or organization and does an act in such pretended capacity for the purpose of obtaining a benefit for himself or another or to injure or defraud another;

(3) Impersonates or falsely depicts another, assumes a false identity, or makes a false or misleading statement regarding the identity of any person, in an oral or written application for services, for the purpose of obtaining services;

(4) Obtains any personal identifying information pertaining to another person and uses that information, or assists another person in using the information, in order to assume the identity of or represent himself as another person, without that person's authorization and with the purpose to fraudulently obtain or attempt to obtain a benefit or services, or avoid the payment of debt or other legal obligation or avoid prosecution for a crime by using the name of the other person; or

(5) Impersonates or falsely depicts another, assumes a false identity, or makes a false or misleading statement, in the course of making an oral or written application for services, with the purpose of avoiding payment for prior services. Purpose to avoid payment for prior services may be presumed upon proof that the person has not made full payment for prior services and has impersonated or falsely depicted another, assumed a false identity, or made a false or misleading statement regarding the identity of any person in the course of making oral or written application for services.

[As used in this section:

"Benefit" means, but is not limited to, any property, any pecuniary amount, any services, any pecuniary amount sought to be avoided or any injury or harm perpetrated on another where there is no pecuniary value.]

b. (Deleted by amendment, P.L.2005, c.224).

c. A person who violates subsection a. of this section is guilty of a crime as follows:

(1) If the actor obtains a benefit or deprives another of a benefit in an amount less than $500 and the offense involves the identity of one victim, or if the actor injures or defrauds one victim by means of impersonation, false depiction, or otherwise, whether or not for pecuniary gain, the actor shall be guilty of a crime of the fourth degree except that a second or subsequent conviction for such an offense constitutes a crime of the third degree; or

(2) If the actor obtains a benefit or deprives another of a benefit in an amount of at least $500 but less than $75,000, or the offense involves the identity of at least two but less than five victims, or if the actor injures or defrauds at least two but less than five victims by means of impersonation, false depiction, or otherwise, whether or not for pecuniary gain, the actor shall be guilty of a crime of the third degree; or

(3) If the actor obtains a benefit or deprives another of a benefit in the amount of $75,000 or more, or the offense involves the identity of five or more victims, or if the actor injures or defrauds five or more victims by means of impersonation, false depiction, or otherwise, whether or not for pecuniary gain, the actor shall be guilty of a crime of the second degree.

d. A violation of N.J.S.2C:28-7, constituting a disorderly persons offense, section 1 of P.L.1979, c.264 (C.2C:33-15), section 64 of P.L.2021, c.16 (C.2C:35-10d), R.S.33:1-81 or section 6 of P.L.1968, c.313 (C.33:1-81.7) in a case where the person uses the personal identifying information of another to illegally purchase an alcoholic beverage or for using the personal identifying information of another to misrepresent the person's age for the purpose of obtaining tobacco, any cannabis item, or other consumer product denied to persons under 21 years of age shall not constitute an offense under this section if the actor received only that benefit or service and did not perpetrate or attempt to perpetrate any additional injury or fraud on another.

e. The sentencing court shall issue such orders as are necessary to correct any public record or government document that contains false information as a result of a theft of identity, including, but not limited to, ordering a public retraction of any false depiction or any statement falsely attributed to the victim, and the destruction of the false personation record, at the defendant's expense. The sentencing court may provide restitution to the victim in accordance with the provisions of section 4 of P.L.2002, c.85 (C.2C:21-17.1).

f. As used in this section:

"Benefit" means, but is not limited to, any property, any pecuniary amount, any services, or any pecuniary amount sought to be avoided.

"False personation record" or "record" means any audio or visual media that was entirely generated by or substantially manipulated using computer technology, or any artificially generated speech, transcription of speech, or text, that:

(1) a reasonable person, having considered the visual or audio qualities of the record, the context of the speech or text, and the nature of the distribution channel in which the record appears, would believe accurately exhibits the activity of a person but which the person did not undertake and which was produced without the consent of the person, and

(2) the exhibition of which is substantially likely to cause perceptible individual or societal harm, including, but not limited to, misrepresentation, reputational damage, embarrassment, harassment, financial loss, the incitement of violence, the alteration of a public policy debate or election, improper interference in an official proceeding, or the furtherance of any unlawful act.

"Falsely depict" or "false depiction" means, but is not limited to, the use or distribution of a false personation record with knowledge of the falsity of the record and with the intent of misrepresenting the authenticity or provenance of the record.

(cf: P.L.2021, c.25, s.14)

2. Section 7 of P.L.2003, c.184 (C.2C:21-17.4) is amended to read as follows:

7. a. Any person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use of that person's personal identifying information, in violation of N.J.S.2C:21-1, section 1 of P.L.1983, c.565 (2C:21-2.1), N.J.S.2C:21-17, section 5 of P.L.2003, c.184 (C.2C:21-17.2) or section 6 of P.L.2003, c.184 (C.2C:21-17.3), may bring an action in any court of competent jurisdiction. In any action under this section the court shall, in addition to any other appropriate legal or equitable relief, award damages in an amount three times the value of all costs incurred by the victim as a result of the person's criminal activity. These costs may include, but are not limited to, those incurred by the victim in clearing his credit history or credit rating, or those incurred in connection with any civil or administrative proceeding to satisfy any debt, lien, or other obligation of the victim arising as a result of the actions of the defendant. The victim may also recover those costs incurred for attorneys' fees, court costs and any out-of-pocket losses. A financial institution, insurance company, bonding association or business that suffers direct financial loss as a result of the offense shall also be entitled to damages, but damages to natural persons shall be fully satisfied prior to any payment to a financial institution, insurance company, bonding association or business.

b. The standard of proof in actions brought under this section is a preponderance of the evidence, and the fact that a prosecution for a violation of N.J.S.2C:21-1, section 1 of P.L.1983, c.565 (2C:21-2.1) or N.J.S.2C:21-17 is not instituted or, where instituted, terminates without a conviction shall not preclude an action pursuant to this section. A final judgment rendered in favor of the State in any criminal proceeding shall estop the defendant from denying the same conduct in any civil action brought pursuant to this section.

c. The cause of action authorized by this section shall be in addition to and not in lieu of any forfeiture or any other action, injunctive relief or any other remedy available at law, including, but not limited to, a civil action for common law defamation, libel, slander, invasion of privacy, false light, misappropriation of identity, intrusion of privacy, or public disclosure of private facts.

[except that where] Where the defendant is convicted of a violation of this act, the court in the criminal action, upon the application of the Attorney General or the prosecutor, shall in addition to any other disposition authorized by this Title sentence the defendant to pay restitution in an amount equal to the costs incurred by the victim as a result of the defendant's criminal activity, regardless of whether a civil action has been instituted. These costs may include, but are not limited to those incurred by the victim in clearing his credit history or credit rating; those incurred in connection with any civil or administrative proceeding to satisfy any debt, lien, or other obligation of the victim arising as a result of the actions of the defendant; or those incurred for attorneys' fees, court costs and any out-of-pocket losses. A financial institution, insurance company, bonding association or business that suffers direct financial loss as a result of the offense shall also be entitled to restitution, but restitution to natural persons shall be fully satisfied prior to any payment to a financial institution, insurance company, bonding association or business.

(cf: P.L.2005, c.224, s.5)

3. This act shall take effect immediately.

STATEMENT

This bill extends the crime of identity theft to include fraudulent impersonation or false depiction by means of artificial intelligence or deepfake technology. A so-called "deepfake" or, as defined under this bill, a "false personation record," includes images, video, sound, speech, or text generated entirely by or substantially manipulated using newer technology such as artificial intelligence with the intent of making it appear, as realistically as possible, that the person being depicted has engaged in activity or speech that did not actually occur. Deepfakes have been used to embarrass or harass a person, cast a person in a false light or misappropriate a person's identity or likeness, and fraudulently misrepresent a person's words and actions to the public, and have been distributed to the public both with and without the intention of pecuniary gain. Falsely depicting a person by means of a deepfake is tantamount to stealing that person's identity.

Under the bill, the grading of identity theft into crimes of the fourth, third, and second degree remains unchanged. However, false depiction by means of a deepfake would be graded by the number of victims affected. Thus, false depiction affecting one victim is a crime of the fourth degree except that a second or subsequent conviction for such an offense constitutes a crime of the third degree. False depiction affecting at least two but less than five victims is a crime of the third degree, and false depiction affecting five or more victims is a crime of the second degree.

A crime of the fourth degree is punishable by up to 18 months imprisonment, a fine of up to $10,000, or both. A crime of the third degree is punishable by three to five years imprisonment, a fine of up to $15,000, or both. A crime of the second degree is punishable by five to ten years imprisonment, a fine of up to $150,000, or both.

To remediate the economic or reputational harm caused by a false depiction, the court may order that the deepfake be destroyed and a public retraction be made at the defendant's expense. In addition, the bill clarifies that any civil action for economic restitution by a victim does not preclude a civil action for non-economic losses such as common law defamation, libel, slander, invasion of privacy, false light, misappropriation of identity, intrusion of privacy, or public disclosure of private facts.